Disability and injustice

Pro bono support from DLA Piper for Human Rights Commission project ... Disability and access to justice ... High prospects of miscarriage of justice in cases where defendants are disabled ... Potential for more human rights support from legal profession ... Kate Lilly reports  

Ironically, we know that justice is not always found in the criminal justice system - and for those living with disability, the struggle for, or even participation in, the system, can be an overwhelming. 

In a new report entitled, Equal Before the Law, the Australian Human Rights Commission sheds light on the barriers disabled Australians face as victims, defendants, witnesses and prisoners when faced with an appearance in court.

The report was produced in partnership with global law firm DLA Piper, which conducted pro bono research for the commission and assisted in the Australia-wide consultation process. 

Disability Discrimination Commissioner Graeme Innes told Justinian: 

"The commission with its very limited resources these days, struggles to cover all the areas that we would like to. Having support from a legal firm such as DLA Piper is incredibly valuable - and this was the first time that we've had this pro bono support by a law firm."

He says there will be more opportunities for firms to get involved, if they're willing to take them.

"I think the role that they can play is only really limited by what legal firms and the commission can think of. As we go into a time when our resources are likely to be more limited, it becomes a far more important role."

If the commission's resources are dwindling, its work certainly is not.  

According to the Australian Bureau of Statistics, 4.2 million Australians reported living with a disability in 2012. 

The Equal Before the Law report notes people with a disability experience higher levels of violence, and have higher rates of interaction with the criminal justice system than non-disabled Australians.  

The report finds a "widespread difficulty identifying disability and responding to it appropriately".  

The shortcomings are numerous: the use of inappropriate questioning techniques; a failure to provide appropriate support services or to notify people when they are available; and the common assumption that a person with a disability is incapable of acting as a witness or unfit to stand trial.  

Among these people, women and Aboriginal or Torres Strait Islanders are particularly vulnerable. 

Aboriginal and Torres Strait Islander people are 1.7 times more likely to be living with a disability, according to the ABS. 

The commission cites a 2011 study, indicating that 90 percent of women with an intellectual disability have been sexually abused and that more than two-thirds of those women experienced the abuse before their eighteenth birthday.

The commission received a submission describing a woman with limited speech who was asked to describe the details of a sexual assault in front of her parents, rather than with an independent communication worker to assist her. 

Another submission describes a clinically deaf Aboriginal man who was convicted of first-degree murder. His disorder went undiagnosed throughout the entire court process, so that he was unable to understand the questions directed to him.  

Before it was referred to the Human Rights Commission, DLA Piper had been working with a coalition of organisations to produce the Disability Rights Now report - an assessment of life with disability in Australia, intended to assist the United Nation's review of Australia's compliance with the UN Convention on the Rights of Persons with Disability. 

Daniel Creasey, DLA Piper's Asia-Pacific Pro Bono Manager told us: 

"Given our experience working with those coalitions and those major human rights organisations, this felt like it was another extension of that work." 

Within the firm, those who conducted the background research were also involved in the consultation process.   

"We probably had around 16 people across Australia from all of our different offices contributing to this. We sent lawyers and graduates to most of the consultations that we held around Australia to assist in note-taking, facilitating those consultations and being involved - to hear from people directly about their experiences." 

Creasey says DLA Piper will be offering its service in future projects.  

"Referrals from the commission are something that we are very keen for our human rights practice to be able to take on."

In the meantime, the HRC hopes to see a tailored Disability Justice Strategy implemented in each jurisdiction.

Suggested features include facilitating appropriate communication support, developing alternatives to detention and establishing effective training for police and court staff. 

"As we did the consultations and prepared our report, we've been able to encourage the work towards the Disability Justice Plan that's been happening in South Australia," says Graeme Innes. 

"I'll be certainly doing that as we move around the country talking to various attorneys general to encourage other jurisdictions to follow South Australia's example."  

Legal and support services for people with disabilities in the criminal justice system are sought by the HRC - see callout programs. 

Ed Note

Word on the street is that AG Brandis is unlikely to appoint a new Disability Discrimination Commissioner when Graeme Innes terms concludes towards in the middle of this year.